Kelliher (Village of) v. Smith, [1931] SCR 672

SUPREME COURT OF CANADA

Kelliher (Village of) v. Smith, [1931] S.C.R. 672

Date: 1931-06-23

THE VILLAGE OF KELLIHER (DE—. } APPELLANT; FENDANT)

AND
A. C. SMITH (PLAINTIFF)    RESPONDENT.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Negligence—Municipal corporations—Councillor of municipality injured while operating municipality's fire extinguisher—Responsibility for in­jury—Degree of care—Duty of municipality—Duty of councillor operating the machine—Liability—Volenti non fit injuria—Doctrine of Rylands v. Fletcher—Expert evidence—Charge to jury—Jury's findings.

*PRESENT :Duff, Newcombe, Rinfret, Lamont and Cannon JJ.

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for Saskatchewan (25 Sask. L.R. 65), reversing judgment of Taylor J. (24 Sask. L.R. 198), gave judgment to plaintiff for damages. Defendant appealed.

Held (Duff and Newcombe JJ. dissenting) that the appeal should be dismissed.

Per Rinfret, Lamont and Cannon JJ.: It was for the jury, on all the evi­dence, to say whether the proper inference to be drawn was that the acid 'chamber covering was loose because the fire chief had failed to tighten the bolt when he had last recharged the extinguisher or to inspect it properly afterwards, or that some third person had unscrewed the bolt (as to interference by a third person, the onus was on defendant to establish it, or at least to shew such probability that the jury would infer it: Dominion Natural Gas Co. v. Collins, [1909] A.C. 640). Also 'the question of plaintiff's negligence was one of fact for the jury; it was for them to say whether or not, in his operation of the extinguisher, he had failed to exercise the care which a reasonably prudent and careful man would have exercised in like circumstances. Unless plaintiff had season to suspect that the fire chief had not done his duty as to inspection, the jury was entitled to find plaintiff not guilty of negligence in assuming that he had. There was evi­dence from which the jury might find that plaintiff's injuries were caused by negligence of defendant, and also that plaintiff's conduct in operation of the extinguisher was free from want of care. The maxim volenti non fit injuria did not apply; plaintiff, who was unaware that the covering was not properly fastened, neither appreciated the danger he was running nor voluntarily incurred 'the risk (C.P.R. v. Fréchette, [19151 A.C. 871, at 880, cited). The first part of the jury's finding as to contributory negligence, viewed in the light of the circumstances and the judge's charge, meant that the only negligence of which they found plaintiff guilty was that he shared with his fellow councillors in their representative capacity in not seeing to it that the extin­guisher was duly inspected and kept fit for immediate use. As to this, it has long been established law 'that a person is not liable in his individual capacity for a tort committed in his corporate capacity (Mill v. Hawker, L.R. 9 Ex. 309, at 321, and other cases cited). The objections by defendant to the judge's charge to 'the jury were not maintainable. Taken as a whole, it did not direct that there was an absolute duty on defendant to keep its extinguisher from doing harm (Doctrine of Rylands v. Fletcher, L.R. 3 H.L. 330, discussed, and held not to apply, the extinguisher having been brought to the village for . common protection of the 'corporation and its citizens as individuals; Rickards v. Lothian, [1913] A.C. 263, at 280; Hess v. Greenway, 48 D.L.R. 630, cited), but impressed upon them that the only basis on which defendant could be charged with liability was negligence; his direction that the care to be observed by defendant must be com­mensurate with the danger of harm involved, was a proper one. His direction to disregard the evidence of one F., an inspector for the fire commissioner of the province, to the effect that one operating the extinguisher should see that the covering was tight before breaking the acid bottle, was unobjectionable, as the elements did not exist to justify its 'admission as expert evidence, and the jury were as capable as the witness of forming a correct judgment as to plaintiff's acts.

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Per Duff and Newcombe JJ. (dissenting) : The risk of escape of the liquid to the injury of persons in proximity was one which it was the abso­lute duty, in point of law, of any person working the machine, to avoid, if reasonably possible. Plaintiff knew of the danger if the covering were not tight, and to ascertain and correct the condition was a simple and quick operation. It was the duty of the munici­pality, at the time of actual operation, not to release the acid without first seeing that the covering was securely fastened. The acts of plaintiff in is operation of the machine were the acts of the munici­pality, and its said duty was equally his duty; he owed a duty to it to see that the responsibility resting upon it, in respect of the precautions to be observed in working the machine, were, so far as reasonably possible, discharged. He was not entitled to assume that, because of instructions given to the "fire chief," the covering was tight, in view of the facts (known to plaintiff) that the machine had been exposed in a place open to the public, that it could be made unsafe very easily, that, by reason of the fire chief's other duties, a periodical inspection was the utmost that could be expected, and in view of possibility of neglect by the fire chief, the simple nature of the precaution required at the moment of operation, and the magni­tude of the danger. The direct and proximate cause of plaintiff's injuries was his own neglect. Further, there were errors in the charge to the jury, as to the extent of defendant's duty, and in withdraw­ing from the jury F.'s evidence as to the proper, known and recog­nized method of working the machine; which errors in the charge, were the action not to be dismissed, would be ground for a new trial.

APPEAL by the defendant from the judgment of the Court of Appeal for Saskatchewan[1].

The action was for damages for personal injuries sus­tained by the plaintiff through the explosion of one of the defendant's chemical fire extinguishers, the operation of which extinguisher the plaintiff (who was a member of the council of the defendant village) had taken charge of at a fire, the cause of the accident being, so plaintiff alleged, the defendant's negligence. The trial judge, Taylor J., on certain findings of the jury and his construction thereof and his view of the law bearing on the matters involved, dismissed the action[2]. The plaintiff appealed, and the defendant cross-appealed (against certain findings of the jury as perverse and on other contentions). The Court of Appeal¹ allowed the plaintiff's appeal and dismissed the defendant's cross-appeal, set aside the judgment below and directed that judgment be entered for the plaintiff for the amount awarded by the jury ($1,250.26 for special damages,

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and $5,200 for general damages; no appeal was taken as to the amount assessed). The material facts of the case, the findings of the jury, and the issues in question, are sufficiently stated in the judgments now reported.

The appeal to this Court was dismissed with costs, Duff and Newcombe JJ. dissenting.

P. H. Gordon, K.C., for the appellant.

P. M. Anderson, K.C., for the respondent.

The judgment of the majority of the court (Rinfret, Lamont and Cannon JJ.) was delivered by

LAMONT, J.—This is an appeal from a judgment of the Court of Appeal of Saskatchewan[3] in favour of the plaintiff in an action for damages for personal injuries sustained by him through the explosion of one of the defendant's chemical fire extinguishers at a fire which occurred in the Village of Kelliher on the evening of December 22, 1927. The defendant's extinguisher consists of a forty gallon cylindrical tank on wheels to which a hose is attached. Attached to it also is a framework whereby the machine can be pushed or pulled as required. Towards the rear end but inset in the top of the tank in a separate chamber is a glass bottle of sulphuric acid hold­ing about three pints. This chamber is covered with an iron dome covering, convex in shape. Over this dome is an iron circular band which is bolted to the tank. Through the centre of this band is an iron screw bolt which when screwed down tight holds the iron dome firmly in its place so that no gas or liquid can come out of the top of the sulphuric acid chamber. The tank is filled with a solution of water and bicarbonate of soda. To put the extinguisher in operation at a fire the sulphuric acid bottle has to be broken. This is done by turning a crank on the outside of the tank which causes a hammer ,on the inside to strike it. The acid then mingles with the solution in the tank and generates a high pressure of carbonic acid gas which forces the mixture through the nozzle of the hose upon the fire and smothers it. The extinguisher was kept in the village pool room because it was a central place and was always warm in winter.

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About eight o'clock on the evening of December 22, 1927, an alarm of fire was given in Kelliher, and the plaintiff, who was 'a general merchant and also a member of the village council, ran to the pool room and, with a Mr. Wilson, got one of the two extinguishers owned by the defendant and pulled it to the fire. Having got it in place, the plaintiff turned the crank and broke the sulphuric acid bottle to generate pressure. In a few seconds the dome covering of the sulphuric acid chamber blew off and a stream of sulphuric acid struck the plaintiff in the face, burning him severely and practically destroying his eyesight. The dome blew off because the iron bolt for holding it in place had not been screwed down. This was shewn by the fact that the threads on the bolt had not been injured. It was the duty of the fire chief, H. G. Clark, to keep the extinguishers in good working order.

At the trial the plaintiff's contention was that his injuries were caused by the failure of the defendant to maintain the extinguisher in a safe and proper condition for use; while the defendant contended that the explosion was due to the plaintiff's want of care, (a) in attempting to operate the extinguisher without first seeing that the bolt which held the dome cover in place had been screwed down tight, and (b) in that he and his fellow councillors had not kept the extinguisher in proper condition for use. The defendant also set up that the plaintiff was well aware of the danger, and voluntarily accepted the risk. The material questions, and the answers of the jury thereto, are as follows:—

Q. 1. Was the injury to the plaintiff on the 22nd December, 1927, caused by the negligence of the defendants?—A. Yes.

Q. 2. If so, in what did such negligence consist? Give particulars.—A. For not having 'heir fire extinguisher properly inspected and kept in perfect working order.

Q. 3. Do you find the plaintiff guilty of contributory negligence?—A. Yes.

Q. 4. If so, in what did such contributory negligence consist? Give particulars.—A. Only to the fact that he was a councillor on the date of the fire but not negligent in the operation of the fire extinguisher at the time of the fire.

On these findings the trial judge dismissed the action[4].
The plaintiff appealed to the Court of Appeal and the
defendant served notice of cross appeal stating that on the
hearing it would contend that there was no evidence upon

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which a jury could reasonably find that the defendant was guilty of negligence, nor could they reasonably absolve the plaintiff from contributory negligence in his operation of the extinguisher ,at the fire, and that their answers on both points were perverse. The notice further stated that the defendant would contend that the maxim volenti non fit injuria should be applied in this case. The Court of Appeal allowed the plaintiff's appeal and dismissed the cross appeal[5]. From that judgment this appeal is brought.

Before us counsel for the defendant again advanced the argument that the answers of the jury to Question 2, and the latter part of their answer to Question 4, were perverse and contrary to the evidence; and he stressed the fact that the extinguisher was kept in a place open to the public, any one of whom might have unscrewed the bolt which holds in place the iron dome.

The jury had before them the fact that the defendant had brought to the village as a fire fighting apparatus this chemical extinguisher which was a highly dangerous instru­mentality unless care was taken to keep the dome covering of the sulphuric acid chamber tightly fastened. They knew that the extinguishers were kept in the pool room and that the defendant intended and expected its citizens, on hearing an alarm ,of fire, to go to the pool room and get the extinguishers and take them to the fire where they were to be used in fighting the flames. To be effective for that purpose the extinguishers were required to be in a condi­tion in which they could be immediately and safely oper­ated. In his charge the trial judge instructed the jury that if the municipality keeps a machine which is dangerous, or potentially dangerous, it assumes the responsibility of keep­ing it from doing harm; that if the machine is kept to be used at fires and there is an extra danger in its use, then there is upon the municipality so providing it a duty to take precautions to avoid that danger and that the duty was commensurate with the danger involved. The council recognized its obligation in this respect and had notified the fire chief that it was his duty to " keep the extinguishers in proper working shape ". The jury had also before them the fact that, in August, the fire chief had recharged the extinguishers, which necessitated taking the dome covering

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off the sulphuric acid chamber, and that neither extin­guisher had thereafter been used until the fire in question. The fire chief in his evidence stated that he knew the bolt had been screwed down after the extinguisher had been recharged or he would not have left it. This the jury may have thought was reasoning rather than recollection, at any rate it was for them to say whether or not they would accept the evidence. They had also before them conclusive evi­dence that when the other extinguisher was taken to the fire the wheel that opens the valve which permits the mixture to flow through the hose was stuck fast and could not be turned. This fact alone was evidence that there had been no proper inspection of the extinguishers and entitled the jury, if they thought fit, to reject the evidence of the fire chief and the overseer that they had inspected the extinguishers a few days before the fire and that everything was in good order. There was also the fact that, although for years the extinguishers had been kept in the pool room, no one had ever improperly interfered with them. It was for the jury, .on all the evidence, to say whether the proper inference to be drawn was that the dome covering was loose because the fire chief had failed to tighten the bolt when he recharged the tank or to properly inspect the extinguishers afterwards, or that some third person had unscrewed the bolt, which is the only other explanation suggested. As to interference by a third person, the onus was on the defendant to establish it or at least to shew such a probability of its having taken place that the jury would infer that it had. Dominion Natural Gas Co v. Collins[6].

On the question of the plaintiff's contributory negligence, the jury had before them an account of the 'acts of the plaintiff shewing just what he did and how he did it. They had also his testimony that he saw nothing to indicate that the dome covering was loose or to direct his attention to it, and that he assumed the fire chief had obeyed the council's instructions and kept the extinguishers in proper working order. With all these facts before them it was the duty of the jury to say whether or not, in his operation of the extinguisher, the plaintiff had failed to exercise the care which a reasonably prudent and careful man would have exercised in like circumstances.

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For the defendant it was pointed out that there was in force a village by-law which enacted that "the overseer of the village, or in his absence any member of the council, whom failing, the fire inspector, shall be the director of operations at " a fire, and it was urged that this imposed upon the plaintiff the duty of making sure that the extin­guisher was in a condition in which it could be used with safety before putting it in operation. The by-law does not in terms require a councillor directing operations at a fire to make an inspection of the extinguisher before putting it in operation. That was the duty of the fire chief, and unless the plaintiff had some reason to suspect that the fire chief had not done his duty the jury were entitled to find that he was not guilty of negligence in assuming that he had. Furthermore, it must not be forgotten that in taking charge of the extinguisher at the fire the plaintiff was fulfilling an obligation imposed upon him in his official capacity by the by-law. In the absence, therefore, of a statutory provision making a councillor individually re­sponsible for the failure of the fire chief to obey his instructions, which the by-law does not do, or casting on a councillor the duty of personal inspection of the extin­guishers, the whole question of the plaintiff's negligence was a question of fact for the jury. I, therefore, agree with the Court of Appeal that there was evidence from which the jury might find, not only that the plaintiff's injuries were caused by the negligence of the defendant, but that the conduct of the plaintiff in his operation of the extinguisher at the fire was free from any want of care on his part.

The argument of the defendant's counsel that this was a proper case for the application of the maxim volenti non fit injuria, cannot be supported. In C.P.R. v. Fréchette[7], the Privy Council held that to establish this defence it must be shewn, (1) that the plaintiff clearly knew and appre­ciated the nature and character of the risk he ran, and (2) that he voluntarily incurred it. In the present case the plaintiff was not aware that the dome covering was not properly fastened and, therefore, he neither appreciated the danger he was running nor voluntarily incurred the risk.

As far as the matters before the Court of Appeal are concerned there is only one question which, in my opinion,

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requires consideration, and that is: what did the jury mean by their finding that the plaintiff was guilty of contributory negligence " only to the fact that he was a councillor on the date of the fire "? Their express finding that he was "not negligent in the operation of the fire extinguisher at the time of the fire " shews that the negligence of which they found him guilty as a councillor did not include any want of care on his part in his operation of the extinguisher from the moment it reached the scene of the fire. From that moment he is absolved from any charge of contributory negligence. With negligence on the part of the plaintiff in the operation of the extinguisher excluded, the answer of the jury is, to my mind, intelligible, and their meaning reasonably clear viewed in the light of the circumstances and the instructions given to them. By their answers to the first two questions they had found the defendant guilty of negligence causing the plaintiff's injuries. The defendant could only act through its council. The negligence of the defendant was, therefore, the negligence of its council. In his charge the trial judge said:—

Some things are more dangerous than other things and if it is highly dangerous, very dangerous, the law imposes on the municipality the duty to protect against that danger. They cannot escape the duty that is put upon them by simply delegating it to someone else. It is insufficient to pass a resolution requiring someone or some persons to inspect the ma­chinery and let it go at that.

This the jury would understand referred to the direction of the council to the fire chief to keep the extinguishers in good working order which the fire chief admitted involved the duty of an inspection. By reason of this direction the jury knew that the defendant village could not escape liability on the ground that the council directed the fire chief to perform a duty which the law cast upon the council itself. What the jury meant, therefore, by their answer, in my opinion, was that the only negligence of which they found the plaintiff guilty was that which he shared with his fellow councillors in their representative capacity in not seeing to it that the extinguishers were duly inspected and kept fit for immediate use. At first sight it might seem that the jury by finding the plaintiff guilty of negligence as a councillor " on the date of the fire," had in mind some specific dereliction of duty by him as councillor on that date. I do not think, however, that the words mean, or were intended to mean, anything more than that the plaintiff

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was, on the day of the fire, a councillor and, as such, he had failed to see that the duty resting on the council had been performed. That this was the jury's meaning seems established by the fact that, once negligence in the opera­tion of the extinguisher was eliminated, there was no negli­gence of which the plaintiff, under the circumstances, could be guilty except a breach of duty in his representative capacity, and it has long been established law that a person is not liable in his individual capacity for a tort com­mitted in his corporate capacity.

In Mill v. Hawker[8], Kelly, C.B., said:—

I conceive it to be settled law that no action lies against the indi­vidual members of a corporation for a corporate act done by the cor­poration in its corporate capacity, unless the act be maliciously done by the individuals charged, and the corporate name be used as a mere colour for the malicious act, or unless the act is ultra vires, and is not, and cannot be in contemplation of law, a corporate act at all.

See also Mahoney v. Guelph[9] ; Harman v. Tappen­den[10].

The only other contention made was that there should be a new trial, because the trial judge failed to properly direct the jury in three material particulars:—

(a) that he instructed them that the law imposed upon the defendant the duty of keeping and maintaining at all times the fire extinguisher in a safe and proper condition at their peril;

(b) that he failed to instruct them as to the degree of care to be exercised by the plaintiff in handling the extinguisher; and

(c) that he directed them to disregard the evidence of Johnson and Furby as to the way of operating the extinguisher.

These objections had been taken at the trial although a new trial was not asked for in the court below.

The portion of the charge objected to under (a) reads:—

Persons having highly dangerous articles assume the responsibility of keeping them safe. It was the duty of the defendants to maintain the same, to maintain the fire extinguisher, "in a safe and proper condition for use and operation as required." As it is put in one case " they are bound to keep it secure at their peril."

It was contended that, by the use of the words " at their peril ", the trial, judge instructed the jury that there

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was an absolute duty resting upon the defendant to keep its extinguisher from causing harm, and that the law did not impose such an onerous duty but only imposed the duty of using a reasonable, or at most, a high degree of care. I do not think the doctrine of Rylands v. Fletcher[11] has any application to a case like the present. That rule provides that any person who, for his own purposes, brings on his land or keeps or collects there anything likely to do mischief if it escapes, keeps it at his peril. If it escapes and does harm to others, the owner is responsible independently of the existence of either wrongful intent or negligence on his part. The rule, however, only applies where the dan­gerous agency is kept by the defendant for his own purposes. It, therefore, has no application where, as here, the extin­guisher was brought to the village for the common pro­tection of the corporation and its citizens as individuals. Rickards v. Lothian[12]; Hess v. Greenway[13]. Although the trial judge, in instructing the jury as to the degree of care required from the defendant, did use a phrase which, if it stood alone, might be understood as imposing liability without any negligence on the defendant's part, a perusal of his charge makes it very clear that he impressed upon the jury that the only basis upon which the defendant could be charged with liability was negligence on its part—that is that the defendant village through its council had failed to observe that degree of care which a careful and prudent man would have observed under the circumstances. He told the jury that the care which it was the defendant's duty to observe must be commensurate with the danger of harm involved. This, in my opinion, was a proper direc­tion. It may be that the use of a particular instrumental­ity might be attended with such extraordinary risk that the only care commensurate with the danger would be such care as operates to prevent injury. In my opinion this objection cannot be maintained.

The portion of the charge referred to in (b) reads:—

When it comes o the standard of duty to be observed by the plaintiff to guide you in determining whether he has been guilty of contribu­tory negligence or not it is not so easy to put it into words. He was bound to use such care as a reasonable and prudent man in like circumstances

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would use, such care as a reasonable and prudent man in the cir­cumstances would observe. You are the judges of that standard.

To this Mr. Gordon, counsel for the defendant, states his objection in the following language:—

I think your lordship should have informed them what a reasonable and prudent man would have done with full knowledge of the danger that he was encountering in breaking the bottle.

As the plaintiff was unaware of the special danger he was encountering through the dome covering not being fastened, I do not see that the trial judge could have been more explicit on this point than he was without invading the province of the jury. In Sherman & Redfield on the Law of Negligence, 6th ed., par. 53, page 105, the learned author says:—

There are no abstract rules, defining so clearly the duties `of men, under all circumstances, that the court can state them without passing upon any question .of fact. The extent of the defendant's duty is to be determined by a consideration of all the surrounding circumstances. The law imposes duties upon men, according to the circumstances in which they are called to act. And though the law defines the duty, the question, whether the circumstances exist which impose that duty upon a par­ticular person, is one of fact. In very many cases the law gives no better definition of negligence than the want of such care as men of ordin­ary prudence or good men of business would use under similar circum­stances. Of course, this raises a question of fact as to what men of this character usually do under the same circumstances. This is a point upon which a jury have a right to pass, even though no evidence of the usage were given; for they may properly determine the question by referring o their own experience and observation. Indeed, they must do so; since expert evidence on such points is usually not admissible.

The instruction to disregard the testimony of Johnson and Furby, complained of under (c), had reference to the opinion each expressed that, in operating an extinguisher such as the defendant had, it was the duty of the operator to ascertain if the dome covering was properly fastened before breaking the bottle of sulphuric acid. Johnson was the village blacksmith, and Furby was an inspector for the fire commissioner for the province, whose duty it was to go to the various cities, towns and villages to see if the fire equipment of each was in order. In effect what these witnesses were being asked was whether or not the plaintiff, in operating the extinguisher the way he did, had been guilty of negligence which contributed to his injuries. This was surely the province of the jury. It was contended that the testimony was admissible because the witnesses were experts. In Beven on Negligence, 4th ed., at page 141, the author says:—

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To justify the admission of expert testimony two elements must coexist:

(1) The subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge.

(2) The witness offering expert evidence must have gained his special knowledge by a course of study or previous habit which secures his habitual familiarity with the matter in hand.

In my opinion, the jury were just as capable as the witnesses of forming a correct judgment as to the plaintiff's acts, and the evidence does not disclose that either of the witnesses had ever operated a similar fire extinguisher. The object of expert evidence is to explain the effect of facts of which otherwise no coherent rendering can be given. Carter v. Boehm[14].

I would dismiss the appeal with costs.

The judgment of Duff and Newcombe JJ., dissenting, was delivered by

DUFF, J.—This is one of those cases in which the plaintiff's sufferings evoke naturally the compassion and sympathy of everybody, and I add, without the least hesi­tation, having considered the circumstances fully in every one of their aspects, in my own mind, a feeling of profound regret that the village community, represented by the appellant municipality, should have thought it right that his claim for compensation should be considered and determined on strictly legal principles. The duty of this court, however, is a rigorous one; here, the claim must be investigated and decided dispassionately, as matter of legal right.

The respondent was severely injured, having (inter alia) his sight gravely impaired, through the escape from a " chemical" fire extinguisher of liquid under high pres­sure heavily charged with sulphuric acid.

For the sake of clearness, it is convenient here to describe the fire extinguisher. The extinguisher, which is of a design in common use, consists of a cylindrical tank carried on a frame between two wheels about three feet high. At one end there is a handle used to pull or push it when required. At the same end is a leg or prop to hold the tank in a horizontal position. At the top of the tank and at the end nearest the handle is an opening through

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which the extinguisher is charged. The tank is first filled with a solution of water and bicarbonate of soda. Inside the opening is a cage in which is placed a bottle of sulphuric acid. Over the opening there is a metal dome held firmly in position by a screw-bolt which is screwed into the open­ing. A lever passes through the top of the screw-bolt, by which it can be tightened or loosened readily by hand. As to this end of the tank, set in the centre of it, there is a handle that, when pulled, throws up a hammer which breaks the bottle containing the sulphuric acid, which then becomes mixed with the solution of bicarbonate of soda. Carbonic acid gas is developed and the pressure of the gas forces the solution through a hose connected with the tank. There is also a pressure gauge and valve which must be opened to enable the liquid to escape. The pressure indi­cated on the valve is as high as 200 pounds.

The respondent was one of the village councillors, and, a fire having broken out in the village, he was (in execution of his duty as he conceived it) in charge of the extinguisher at the scene of the fire, when he was injured.

The respondent says that he pulled the handle attached to the hammer, breaking the bottle of sulphuric acid, and called upon a bystander to open the valve connected with the hose, which he says was done, when the metal dome was forced from its place and a jet of liquid emerged which struck him in the face. There was no dispute that the dome could not have been firmly screwed into its place or that the escape of the liquid was due to this.

His claim against the appellants was based upon a charge of negligence. The duty, stated in general terms, in which he alleged the municipality had failed, is accurately defined in the finding of the jury, as a duty to have " their fire extinguisher properly inspected and kept in perfect work­ing order ". The particular matter in which the munici­pality is alleged to have made default (the matter intended to be designated by the finding of the jury) was the failure at all times " to keep the cap closed "—to quote the words of the trial judge. The jury found in favour of the respondent, and an appeal to the Court of Appeal of Saskatchewan was dismissed[15].

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Before proceeding to comment upon the legal conten­tions, it is essential to make plain the actual position of the respondent and to outline the steps taken by the municipality for the care of the two fire extinguishers which it possessed. The village had statutory authority to "make provision for protection against fire "—I am quoting the summary of the legislation given by the trial judge in his charge. Acting in part, no doubt, under that authority, the council had passed a by-law containing this clause:—

43. The Overseer of the Village, or in his absence any member of the council, whom failing, the fire inspector, shall be the director of opera­tions at, and regulate the conduct of all persons assisting in the suppres­sion or extinguishment of fires, and he may call upon any person present at any fire to render every assistance in his power to suppress and ex­tinguish the same.

The learned trial judge instructed the jury that the council had exceeded its powers in professing to make it obligatory upon councillors to perform the duties prescribed in section 43. As to that, I express no opinion, and it may be that the direction has no bearing upon this appeal. At all events, in the view I take upon other aspects of the case, the point is unimportant. The by-law does clear­ly authorize the councillors, in the contingency defined, to take charge (to direct operations and to regulate the conduct of persons assisting) ; and to that extent it is clearly intra vires. The respondent in what he did acted upon the authority embodied in the by-law. That is left beyond doubt by his own evidence.

Q. When you four men were over there was there any one taking charge of this?—A. I did.

Q. Why did you?—A. I was the only councillor present.

Q. What authority as councillor did you have to do this?—A. Well, I have authority from the by-law.

Q. What by-law?—A. By-law No. 34, Fire by-law.

Mr. ANDERSON : I would like to put that by-Iaw in as an exhibit.

His LORDSHIP: I would like to know if he was familiar with that by-law.

Mr. ANDERSON: Were you familiar with that by-law?—A. I was. His LORDSHIP: How and when? It may be most material. How and when?

Q. Were you familiar with that by-law before the time of this acci­dent?—A. Yes, I was.

Q. Do you remember what year it was passed in?—A. 1926.

Q. How did you familiarize yourself with it?—A. Well, I was on the council. When I went into the council it was the natural thing o go into the by-laws and read them up.

Q. And you did familiarize yourself with by-law No. 34?—A. Yes.

[Page 687]

The municipality had no proper place of its own where the extinguishers could be stored; and they were kept in a pool room, where, it is admitted, they were accessible to the public. There was a great deal of discussion at the trial as to the duties of one Clarke, who is generally referred to as the fire chief. In point of fact, Clarke was, and had been for years, the village constable charged with the duties incident to that office, as well as the duties of caretaker of the rink, receiving a wage of $30 a month. In 1927, he complained to the council that he had not access to a number of hand extinguishers which were left in the cus­tody of individuals in their houses, and asked for authority to inspect them. A by-law was passed appointing him Fire Chief and he was then instructed by the village overseer and the plaintiff, to quote the plaintiff's evidence, " to look after these fire extinguishers and see they were kept in proper working order and kept in some safe place ". No additional wage was attached to the new office, and admittedly there was no intention to change the place of storage of the fire extinguishers with which we are con­cerned. It was the duty of Clarke, from time to time, to recharge the extinguishers; and they had been recharged on some day in the late summer or early fall.

The learned trial judge held, and so instructed the jury, that the appellants were under a legal obligation " to maintain this extinguisher in a safe and proper condition for use and operation as required." They were bound, he said, " to keep it secure at their peril." This obligation includ­ed, he held, the specific legal duty " to keep the cap closed." In the Court of Appeal, the duty of the appellants, by Mac­kenzie J.A., is described in the terms of the jury's finding to have the extinguishers " kept in perfect working order." This view he grounds apparently upon " the emergency conditions under which such apparatus must often neces­sarily be used" * * *

There can be no question as o how the accident happened, in that the metal cap covering the chamber was loose and so permitted the expulsion of the acid upon its release from the chamber. It is denied that it became loose when the extinguisher was taken to the fire. It must therefore have become loose while it was being kept in the poolroom. The council, however, had appointed Clarks as fire chief for the very purpose of keeping it in proper working order. Therefore Clarke must have been derelict in his duty and so have rendered the defendant liable.

[Page 688]

Turgeon J.A. puts the case in a rather different way. He says:

The defendant corporation, in order o secure its own property and the property of its citizens against the spread of fire, purchased this ex­tinguisher and kept it, ready for use, in a place accessible o the public ; and it was intended and desired that the public, in case of fire, should take the extinguisher, convey it o the place required, and operate it. Admit­tedly, the extinguisher contains a dangerous substance, sulphuric acid, and is sure, or almost sure, to cause a serious accident, when operated, unless it is in perfect condition; that is, unless (for the purposes of this case) the metal cap above referred to is firmly bolted down.

* *           *           *           *

In these circumstances, and assuming that the jury accepted this evi­dence, which they had the right o do, I think that the least that can be said concerning the defendants' liability is that they were under obli­gation to take all reasonable precautions to keep this machine in safe condition, having regard to the dangerous nature of its contents and to the fact that, when wanted, it would be wanted in a hurry and that the call for its use might come at any moment of the day or night, and con­sidering also that it was lodged in a place accessible in daytime to many people, uncovered, and unprotected in any manner from the curious and the meddlesome, and that it might be made unsafe very easily, by a simple turn of the wrench.

In view of the course of the trial, and the expressions of opinion just quoted, it is important to recall that on this appeal we are only concerned with negligence causing the injury to the respondent, negligence, to quote the phrase of Lord Cairns, dans locum injuriae; and that the appel­lants can be held responsible to the respondent, in law, only for breach of some duty owing to him which they have violated, and the violation of which was the direct cause of the harm of which he complains. We are not now to consider the rules or principles which might come into play, if somebody, with no express authority from the ap­pellants, had taken possession of this machine and in ignor­ance of the working of it had, through his ignorance or unskilfulness, been the cause of an injury to a bystander. In such a case, we should have to investigate the question of the responsibility of the appellants for the acts of the person working the machine. There is evidence in the by-law before us, that such a procedure was not contemplated by the municipality; and whether the municipality did order its affairs in such a way as to preclude it from disputing re­sponsibility in such circumstances, is a question which might involve debatable issues of law and fact. Had the unskilled person who had assumed the responsibility, in

[Page 689]

his ignorance, of working the machine, been himself in­jured, a further question, still, might arise. These points are not now before us.

The respondent, throughout the occurrences, was acting, as he says, under the authority vested in him as councillor. The machine when under his control was under the con­trol of the municipality, his acts were the acts of the municipality—in taking the machine to the scene of the fire, in releasing the sulphuric acid, and setting up the pres­sure which was the immediate agency in expelling the liquid that so grievously disfigured him. This last men­tioned act was the decisive, the effective act, and, to repeat, it was the act of the municipality, as well as that of the respondent.

Now, as regards third parties, the responsibility of the municipality for the consequences of this act is indisput­able. A great deal is said, in the charge and in the judg­ments, about the importance of keeping the metal cap always securely fastened in preparation for any sudden emergency requiring the employment of the extinguisher. But whatever may be said about that, it is self-evident that the necessity of that precaution could never be so pal­pable as at the very moment when the machine is to be put into operation. There can be no room for argument upon the point that at that moment, it was the duty of the municipality to see that the dome was securely fastened.

One must visualize the situation in the concrete. Sev­eral persons were in close proximity to the machine. All these were exposed to the danger of the gravest injury if the solution in the tank, instead of being forced through the hose, were expelled through the aperture intended to be sealed up by the metal dome. The risk of the escape of this liquid was a risk, which it was the absolute duty, in point of law, of any person working the machine, to avoid, if reasonably possible. Moreover, in point of fact, there was no necessity, no sort of excuse, even, for incurring such a risk. We have not here the case of a pressing emer­gency, in which some desirable precaution could only be observed at the cost of dangerous or even inconvenient delay or of serious loss of efficiency. To ascertain whether the tank was securely closed, and if not, to screw in the cover, and make the machine absolutely safe, was the work

[Page 690]

of an instant only, and of course an operation of the very simplest character. It was therefore, plainly, the duty of the municipality not to incur the wholly needless and useless risk of the liquid escaping, by releasing the sulphuric acid without first seeing that the covering was securely fastened.

This was equally the duty of the respondent. He was engaged personally in working the machine. He was cogni­zant of all the facts. He says he knew and appreciated the character of the risk.

Q. You knew exactly how these things functioned at the time of the

accident?—A. I did.

*             *           *           *           *

Q. You knew you had o direct operations?—A. I did.

*             *           *           *           *

Q. You did not forget the dangerous machine you were handling at all did you?—A. I don't think so.

*             *           *           *           *

Q. You were of course aware that the cap holding down the sulphuric acid would have o be tight or there would be danger?—A. Certainly.

*             *           *           *           *

I shall presently comment upon the excuse the respond­ent proffers. At this point, I wish to emphasize again the fact that the respondent had assumed charge of the machine under the authority given by the by-law, that is to say, he had assumed the duty of "director of operations" on behalf of the municipality. In this capacity, he was bound to see that the responsibility resting upon the municipal­ity, in respect of the precautions to be observed in work­ing the machine, were, so far as reasonably possible, discharged. That duty he owed to the municipality.

The respondent's justification for his heedless act is that the "fire chief " had been instructed to keep the extin­guishers in good order and he assumed that he had done his duty.

I do not desire to speak with severity, but I cannot for-bear observing that unless we are to put out of sight com­pletely the considerations just mentioned, it is difficult to take this explanation seriously. The respondent knew, as everybody did, that the extinguishers were kept in ,a place open to the public by day, "uncovered, and unprotected in any manner from the curious and the meddlesome, and that it might be made unsafe very easily by a simple turn of the wrench ", to quote Turgeon, J.A.; he knew, of course,

[Page 691]

none better, that the village constable, the caretaker of the rink, receiving a wage of $30 a month, who acted as "fire chief ", was not intended to keep these machines under constant guard; that consistently with due attention to his other duties, a periodical inspection was the utmost that could be expected from him; and the respondent himself says that Clarke would have discharged his duty by inspec­tion once a month.

It seems unnecessary to say that the danger which attended the working of the machine depended upon the state of the tank, not in the previous month or week or day, but upon its state at the moment; and that the duty of the respondent to take precautions, was a duty to be exercised with reference to the conditions of the moment, and not to those of some anterior time.

Reverting to the excuse advanced, I do not accept the argument that, in any relevant sense the respondent was entitled " to assume " that Clarke " had done his duty ". Having regard to the magnitude of the danger to which the unsuspecting bystanders were exposed, if the cap was not securely fastened, the respondent was not acting reasonably in taking it for granted, as a fact governing his actions, that Clarke, in exercising his functions, had been at all times free from the common human faults of inattention, forgetfulness or even. neglect; ordinary care involves, in the circumstances in which the respondent was acting, the highest degree of care; he was not proceeding conformably to that standard in staking the safety of the bystanders upon the assumption which he puts forward as his excuse. But let us put this aside. Let us suppose that Clarke had performed every duty expected of him in his capacity as " fire chief "; that he had examined the extinguisher, not within the preceding month (according to the notion of the respondent as to his duty), but within the preceding week, or for that matter, within the preceding twenty-four hours, and that, in fact, he had left the cap securely fast­ened; and let us suppose, furthermore, that this was known to the respondent. I do not agree that in such circum­stances, knowing also, as the respondent did, that the machine had, in the meantime, to quote Turgeon, J.A., again, been exposed in a place open to the public "uncovered, and unprotected in any manner from the curious

[Page 692]

and the meddlesome ", and that it might have been " made unsafe very easily " by a touch of the hand—I am unable ' to agree that such knowledge would have afforded an answer to a claim by Martin, for example, whose clothes were ruined, and who only escaped disfigurement because the respondent's body served him as a shield.

Having regard to the ease with which the cap could be loosened, and the risk, so vividly described by Turgeon, J.A., of its being found in that condition, and the simple nature of the precaution required, a finding exonerating the respondent from responsibility in face of such a claim could not, in my judgment, be sustained as reasonable.

The direct and proximate cause of the respondent's pain­ful injuries was, I regret to say, his own neglect.

This is sufficient to dispose of the appeal. But I cannot take leave of the case without commenting upon another aspect. The learned trial judge told the jury:—

The by-law makes him a director of operations, but in terms the by-law does not require him o check over the machinery to see that it is in good order. He was entitled o assume, unless he had a good reason to know, such a good reason that he ought to know to the contrary, he was entitled o assume that the municipality had performed its duty to have this machine in safe and proper condition for use and operation. The duty was imposed upon them by law to do so, and he was entitled as all men are entitled to assume that they had performed their duty.

Unfortunately, the case, perhaps, has become a little obscured by the use of vague general language to describe a simple concrete matter. The controversy at the trial turned, as it now turns, upon the responsibility for the act by which, on the occasion of the fire, the sulphuric acid was released and became mixed with the solution of bicar­bonate of soda, at a moment when the simple precaution (to securely fasten the metal dome) known by everybody to be essential, had not been observed.

The passage quoted would, in light of the preceding passages in the charge, convey to the jury the idea that the law imposed upon the municipality the duty to see that, at all times, whether the tank was in use ,or not in use, the dome was so fastened, and that the respondent was entitled to assume this duty had been performed. Nei­ther the respondent, nor anybody, supposed for a moment that such a duty rested upon the municipality; and the respondent knew that the municipality had made no pre­tence of performing such a duty.

[Page 693]

In laying down such a rule for the guidance of the jury, the learned judge was plainly wrong; and the mischief could not be corrected by some not very precise observations as to what the respondent might be presumed to know as to the practice.

The learned judge quite failed to make it plain to the jury, as he should have done, that, as regards precautions, the critical moment was the moment when the bottle was broken, and that, in the circumstances, the duty, not to break the bottle in the absence of the obvious precaution, was a duty of the most imperative character.

The learned judge also gravely erred in rejecting the evidence of Mr. Furby, an inspector for the fire commis­sioner of the province. The learned judge had, as we have seen, instructed the jury that it was the duty of the muni­cipality, a duty imposed by law, to have the machine at all times " in safe and proper condition for use and operation." The negligence imputed by the jury to the appellants was " in not having " the extinguisher " kept in perfect work­ing order." It is plain from this answer that the charge had created, in the minds of the jury, the impression that the duty defined by the learned judge in respect of the maintenance of the machine, was a duty owing to the re­spondent, in the circumstances in which the respondent took possession of the machine; and, further, that this duty involved the obligation to have the metal dome fastened tight at that moment. I pass over the question as to the character of the duty (if any), as to the condition of the machine at that moment, owing by the municipality to the respondent. Even if the rule were accepted, as the jury understood the learned judge to have laid it down, viz., that the municipality was under an obligation to keep the extinguisher " in perfect working order," it is not open to dispute, on that hypothesis, the jury should have been in­structed that, in passing upon the question whether the obligation had been performed, they should consider very carefully whether the extinguisher was not in fact " in per­fect working order " or " in safe and proper condition for use and operation." The learned judge ought also to have told the jury that in considering that question, they must take into account the ordinary and proper method of work­ing the machine. Obviously, it would be difficult to say

[Page 694]

whether or not the machine was in perfect working order without knowing how the machine was to be worked.

I find myself quite at a loss to conceive on what ground the evidence of the inspector for the fire commissioner could properly be withdrawn from the attention of the jury. The proper method of working the machine, he ex­plained, is not to break the bottle until after the exit into the hose is opened and the metal dome securely fastened. He explained that instruction to this effect is regularly given to the fire chiefs in the cities, towns and villages of the province, as well as to councillors. This was evidence, not merely as to the proper method of working the machine, but evidence, also, as to the known and recognized method of working it, and it ought not to have been withdrawn from the jury. The jury should have been told that, if that evidence was accepted, they could not properly find that the machine was not " in perfect working order " when it came into the hands of the respondent.

It is clear to me, as I have already said, that the respond­ent's claim fails, because his injuries were due, not to the violation of any duty which the municipality owed to him, but to his own neglect to perform his duty to the bystand­ers and the municipality; but, for the reasons that I have just given, it is equally plain that if the action were not to be dismissed, there must be a new trial on account of the errors into which the learned trial judge fell in his charge to the jury.

The appeal should be allowed and the action dismissed. The appellants would perhaps consider whether they should ask for costs.

Appeal dismissed with costs.

Solicitors for the appellant: Gordon de Gordon. Solicitors for the respondent: Anderson, Bayne & Co.